We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it . . . In addition to protecting the individual creator, this program could, over time, create a “demo reel” that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community.

Fair use is a critical right under United States copyright law that accommodates the First Amendment, is flexible and responsive to change, and supports the constitutional purpose of copyright: to “promote the progress of science and the useful arts.” Fair use allows for creators to use copyrighted works in transformative ways, including for purposes of parody, commentary and criticism, and innovation. Many videos on YouTube rely on fair use, incorporating other copyrighted works, but using them in transformative ways and we applaud YouTube’s decision to defend some creators who rely on this important doctrine.

Join Brandon Butler of ARL and Jonathan Band of Policybandwidth on Thursday, May 24, at 2pm Eastern Time, for a one-hour webcast on the substance and implications of the recent decision in the lawsuit over Georgia State University’s e-reserves program. They will recap the basic facts of the case and the key holdings in the decision, discuss the possible next steps in the litigation, and suggest some of the possible consequences for libraries making their own decisions about how best to implement a fair use policy in the context of course reserves.

Instructions for registration are below. Space in the webcast is limited, but the webcast will be recorded and made freely available on ARL’s YouTube channel for anyone who cannot attend.

I’ll be talking with the folks at UMUC’s Center for Intellectual Property this Wednesday about the AIME v. UCLA case. I plan to lay out the basic legal arguments in favor of streaming video to students outside of class, as well as pointing out a few of the policy takeaways from this encounter. It’s a three-parter, with a more rightsholder-oriented approach from Christopher Mohr as well as a wrap-up session with Peggy Hoon. If you or your institution are CIP members, check it out.

Can the owner of a copyrighted work use her rights to censor history? Courts applying fair use principles have typically held that she cannot. Nevertheless, a recent decision from the Federal Court of Appeals for the Fourth Circuit lets a disgruntled designer do exactly that. ARL (along with our allies in the Library Copyright Alliance) has joined an amicus brief today prepared by Anthony Falzone at the Stanford Fair Use Project asking for the full Fourth Circuit to rehear the case and reconsider the panel’s flawed fair use reasoning.

From 1996 to 1998, the Ravens used a logo that was later determined to infringe Frederick E. Bouchat’s copyrighted drawing, which he had submitted to the Ravens. The resemblance is pretty striking:

from wikipedia

The story of how they came to infringe is bizarre and seemingly innocent—Wikipedia has a brief summary, including pictures of the various logos and sketches involved. In any case, Bouchat sued and won, and the team has used a new logo since 1999. However, the infringing logo of course continues to appear on artifacts and documents of those three seasons, such as highlight films, ticket stubs, and programs.

Mr. Bouchat sued the Ravens and the NFL and asked the court for nothing less than the right to suppress every depiction of his logo, including every depiction of the Baltimore Ravens in uniforms bearing the logo from 1996 to 1998. The district court denied his request, saying these historical depictions were fair use. On appeal, however, a panel of the Fourth Circuit reversed the district court and held that while fair use may protect some displays of the infringing uniforms (in photos at the Ravens’ headquarters, for example), fair use does not protect the depiction of those uniforms in NFL highlight films and short videos shown in the stadium at Ravens home games. The court denied that these depictions were “transformative,” and emphasized the for-profit nature of the highlight films and in-stadium videos.

Falzone’s excellent amicus brief reminds the court that there is overwhelming precedent to support the Ravens’ claim of fair use. The brief makes several important points, but perhaps the most important point is that for-profit use is not fatal to a fair use claim. The court gave significant weight to the fact that the highlight films are “commercial,” while the headquarters displays that it found to be fair use were “free of charge.” This differential treatment is in direct contradiction of the Supreme Court’s ruling in Campbell v. Acuff Rose that commercial uses are not disfavored in fair use analysis.

The import of this decision could be quite significant. The Supreme Court has said that fair use is an essential First Amendment protection because it ensures that the copyright monopoly is not allowed to become a limitation on vital freedoms of expression. If courts decline to apply fair use to protect something as fundamental as the right to document historical facts, they upset the constitutional balance in copyright law. The “exclusive rights” of authors and inventors were never meant to give them a license to censor history. Hopefully the Fourth Circuit will reconsider this very unfortunate decision.

The U.S. Court of Appeals for the Second Circuit issued what may be a landmark opinion on April 30, 2010. Applying a recent Supreme Court decision (eBay v. MercExchange), the Court of Appeals decision in Salinger v. Colting will make it more difficult for copyright-holders to silence defendants during litigation. ARL, along with our friends at the American Library Association, the Association of College and Research Libraries, the Right to Write Fund, and the Organization for Transformative Works, submitted an amicus brief in the case supporting Colting’s claim of fair use and disputing the district court’s reasoning in granting a preliminary injunction. The brief was prepared by Anthony Falzone of the Stanford Fair Use Project.

Federal courts often issue orders known as “preliminary injunctions” that require defendants to cease creating and distributing allegedly infringing works pending the outcome of a copyright lawsuit. These injunctions can be fatal when they force a defendant to stop producing and selling a product that is the sole source of funding for their defense. And when that product is a work of expression (as it must be to be the subject of a copyright dispute), there are genuine First Amendment concerns associated with silencing that expression.

The general rule for issuing a preliminary injunction requires the plaintiff to satisfy several factors, including showing that irreparable harm to the rightsholder will result if the defendant is not stopped even prior to a final decision from the court. In copyright and patent cases, however, courts have presumed that there will be irreparable harm if the rightsholder can show that the behavior is likely to be found infringing. The Court of Appeals’ decision does away with that presumption. Now a rightsholder must actually make a case for irreparable harm based on their individual circumstances, rather than relying on a presumption.

Friends of fair use should enjoy this decision while they can, as good news in this area of the law can seem like a rare phenomenon. The consequences of the decision are hard to predict. Mike Masnick over at TechDirt speculates that the ruling could lead to more forced licensing rather than injunctions against convicted infringers. Ben Sheffner points to an article (PDF) published prior to the opinion arguing that the consequences were not likely to be so dramatic.

Unless otherwise noted, posts after January 10, 2014 are written by Krista L. Cox, Director of Public Policy Initiatives at ARL. Some of the content here will not be written or created by ARL, but rather will be collected from elsewhere on the web. Quotation does NOT imply endorsement!

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02/19/2019 at 3:09pmI first saw this discussed on Twitter, now WaPo has an article on Justice Thomas' concurrence in a denial of cert, but that urges reexamining the 1st & 14th Amendments in libel cases (i.e. a reexamining of NYT v Sullivan) https://t.co/lCwY85MEO0